Document Information

Date: 1978-09
By: British Columbia
Citation: British Columbia, British Columbia’s Constitutional Proposals, Paper No. 4 (Victoria: Queen’s Printer, 1978).
Other formats: Click here to view the original document (PDF).

British Columbia’s
Constitutional Proposals

Paper No. 4
REFORM OF THE
SUPREME COURT OF CANADA

Province of
British Columbia

INDEX

Page

Introduction 7
I. Criticisms of the Supreme Court of Canada 9
II. The Position or Status of the Supreme Court of Canada 11
III. The Structure of Composition of the Supreme Court of Canada 12
Appointment of Judges 12
Size of the Court 14
IV. The Jurisdiction of the Supreme Court of Canada 16
A Constitutional Court? 16
Jurisdiction Limited to Federal Statutes Only? 18
Summary of Proposals 20

“…the Supreme Court of Canada
is an institution whose very existence, as
well as its composition and jurisdiction, are
entirely dependent on the Federal Govern-
ment…How can a Court subject to
these contraints fairly fulful its role as
impartial umpire of the Federal system?”

7

Introduction

The course of political events in Canada in the 1970’s, the decisions
rendered by the Supreme Court and the increasingly sophisticated
studies conducted by constitutional experts have converged to make
politicians and the public aware that the Supreme Court of Canada is
a very significant policy-making institution in the area of federal-
provincial relations.

Prior to 1970 both the normal Canadian conception of the nature
of the judicialfunction and the approaches to federal-provincial relations
adopted by the two levels of government resulted in the Supreme Court
having a low institutional profile. The normal Canadian conception of
the nature of the judicial function paralleled the British view of the role
of the courts. Courts were not seen as an institution involved in the
public affairs of the day. Court solved legal problems by the application
of legal standards to particular fact situations. If one of the con-
sequences of that process was that a particular judicial decision has an
impact on an important current public issue this was usually viewed
as accidental, incidental and, generally, unfortunate.

Today, this rather simplistic View of the role of courts, particularly final courts, is being replaced by an awareness that many crucial issues
of public policy are being considered and resolved in the judicial arena.
There is, therefore, a renewed interest in Canada in the theoretical role
and actual performance of the Supreme Court of Canada.

The second reason for this revival in interest is the changes that have
taken place in the resolution of federal-provincial issues in the political
arena in the past decade. Throughout the 1960s the operation of
Pearsonian co-operative federalism kept almost every potential constitu-
tional issue out of the courts. But, after 1968, the combination of Prime
Minister Trudeau’s more rigid approach to federalism and the growth of
expertise, confidence-and power–in the provinces has meant that it
has not been possible to work out, on a co-operative intergovernmental
basis, an increasing number of federal-provincial issues. Accordingly,
in recent years (particularly the last three) a large number of important
federal-provincial issues have found their way to the Supreme Court of
Canada.

8

Another reason for the increased prominence of the Supreme Court
is that, prior to the mid-l970’s, even if a particular issue could not be
resolved through the political process there was no guarantee that the
issue could find its way to the Supreme Court. Until 1974 the Court
itself imposed very stringent limitations on the types of issues and the
parties it was willing to hear. Then, in two important cases, Thorson
and McNeil, the Court upset fifty years of established law and made it
much easier for a private citizen to raise a constitutional issue before it.
Accordingly, at precisely the time that the political process was showing
signs of stress-namely, an inability to solve certain fundamental issues
of federalism–the Supreme Court made it easier for a private citizen
to bring those issues before the Court for resolution.

The result of the convergence of these developments has been a
great increase in the volume of constitutional cases. In the years
1950-1974 there were, onaverage, slightly less than four such cases
per year. Most of these were not particularly significant. From 1974-
1977 there were six cases per year. In 1978 there are twelve constitu-
tional cases being argued before the Court. But numbers alone tell
only part of the story. What is particularly significant is not so much
the increasing number of cases the Court is deciding but rather the
significance of the Court’s role in the great importance of the issues it is
zonsidering. In the past two years the Court has made decisions (or is
about to make them) on issues unrivalled in significance since the famous
judicial decisions of the Privy Council invalidating much of Prime
Minister R. B. Bennett’s New Deal legislation in 1937. The constitu-
ionality of the entire federal Anti-inflation program (upheld), of Sas-
katchewan’s mineral royalties and taxation scheme (struck down), of
provincial jurisdiction over movie censorship (upheld), of provincial
jurisdiction over “off-air” cablevision (struck down), of Quebec’s
attempt to investigate RCMP security operations in Quebec (pending),
of provincial jurisdiction to initiate prosecutions under the Narcotic
Control Act and other federal statutes (pending), and of jurisdiction
over east coast offshore waters off Newfoundland have all been decided
in the past two years or will likely be decided by the Court in the near
future. These are fundamental federal-provincial issues and they are
being resolved by an institution not in the mainstream of the political
process. It is appropriate, therefore, that serious attention be devoted
to this institution in any process of constitutional review.

9

I. Criticisms of the Supreme Court of Canada

In the past decade a good deal of attention has been focused on
the structure and functions of all federal institutions (indeed British
Columbia has played a leading role in this analysis). The Supreme Court
of Canada, which is a federal institution, has not escaped this attention.

A good starting point for an analysis of the recent criticisms of the
Supreme Court is the Tremblay Report, the famous study commissioned
by the Quebec Government in 1956. According to that Report a true
federal system has three essential features:

(1) the sharing of power between two autonomous orders of
government

(2) the supremacy of the Constitution

(3) the authority of the courts as guardians and interpreters of
the Constitution.

The Report elaborated on the third proposition as follows:
“In order for the Supreme Court to fulfil worthily and
effiiciently its role of impartial arbiter, it is necessary to
guarantee it a position of independence which places it
beyond the reach and influence of either order of govern-
ment . . . it is fundamentally repugnant to the federative
principle that the destinies of the highest tribunal of a
country be surrendered to the discretion of a single order
of government.”

Tremblay then concluded that the Supreme Court could not fulfil
its umpiring function because it was dependent on the central government
from the threefold point of view of its existence, composition and juris-
diction. Here Tremblay was referring to the crucial fact that the
Supreme Court of Canada was created by ordinary federal legislation.
The existence, composition and powers of the Court are not provided
for in the present Constitution. Section l0l of the B.N.A. Act provides:

The Parliament of Canada may, notwithstanding anything
in this Act, from Time to Time provide for the Constitu-
tion, Maintenance, and Organization of a General Court
of Appeal for Canada, and for the Establishment of any
additional Courts for the better Administration of the
Laws of Canada.

Acting pursuant to this section, Alexander MacKenzie’s Liberal
Government established the Supreme Court in 1875. Subsequent federal
statutes have increased the size of the Court (from six to seven to nine)

and expanded the Court’s jurisdiction. But the establishment, size,
method of appointment and jurisdiction of the Court are entirely depen

10

dent on the pleasure of the federal government. The provinces have no
role in these matters and there is nothing in the Constitution to circum-
scribe the absolute role of the federal government.

Tremblay’s analysis of this problem was picked up by many of the
provinces as interest in constitutional review blossomed in the 1960’s.
For example, at the 1960 Federal/ Provincial First Ministers’ Conference
Premier Lesage said:

“The fundamental principle of this federal system requires
that neither one nor the other of the two levels of govern-
ment may interfere with the distribution of powers estab-
lished by the constitution. It follows that the arbitrator
of conflicts in this matter must not be exclusively depen-
dent on either of them.”

To summarize then: the essence of provincial criticism of the
Supreme Court is that it is an institution whose very existence, as well
as its composition and jurisdiction, are entirely dependent on the federal
government. The provinces ask: how can a Court subject to these

constraints fairly fulfil its role as impartial umpire of the Federal system?.

It should be pointed out that the federal government has not been
entirely insensitive to these criticisms. Indeed the basic federal position
-as enunciated in the 1969 position paper entitled The Constitution
and the People of Canada, in the 1971 Victoria Charter proposals and
in the 1978 package of constitutional proposals—seems to comprehend
a willingness to provide for the Court in the Constitution, a willingness
to allow a limited and secondary provincial role in appointments and,
generally, an unwillingness to narrow the jurisdiction of the Court.

Against the background provided by this brief survey of the current
position, and historical and contemporary criticisms of the Court, the
Government of British Columbia states its proposals concerning the
Supreme Court of Canada. There are three key issues that must be
addressed, namely:

(1) the position or status of the Court;
(2) the structure or composition of the Court;
(3) the jurisdiction of the Court.

Each of these will be considered in turn.

11

II. The Position or Status of the Supreme Court of Canada

The basic issue here is should the position, structure and jurisdiction
of the Court be provided for in the Constitution or should these continue
to be subject to ordinary federal legislation?

The Government of British Columbia believes that it is important
to provide for the Supreme Court in the Constitution. The Court’s
primary role is to act as an impartial umpire of the federal system. If it
is to exercise that role legitimately it is essential that its status and juris-
diction be kept out of the hands of both levels of government.

There are those who contend that the fact that the Court is dependent
on ordinary federal legislation is irrelevent because the principle of
judicial independence results in the Court not being dependent on either
level of government, including the level that creates it. But in a federal
society public perceptions are just as important as legal niceties.
Although the principle of judicial independence does guarantee the
impartiality of the Court in fact, in the public mind its impartiality is
called in question if its very existence is dependent on ordinary federal
or, for that matter, ordinary provincial legislation. It is instructive
to note that other countries have recognized this fact-indeed the prac-
tice in all other federations is to provide for the Court in the Constitu-
tion. British Columbia recommends that Canada adopt a similar prac-
tice.

12

III. The Structure and Composition of the Supreme Court
of Canada

There are two basic issues to be considered here. Who should
appoint the judges of the Supreme Court and what should be the size
of the Court?

Appointment of Judges
There are six possible methods of appointing Supreme Court judges:

(1) Appointment by the federal government;

(2) Appointment by provincial governments;

(3) The Victoria Charter method;

(4) Nomination by the Federal Government plus confirmation
by a reconstituted Senate;

(5) The combined Victoria Charter-Sen ate confirmation
method;

(6) Initial intergovernmental consultation plus nomination by

the Federal Government plus confirmation by the Senate.

The first two methods suffer from the same defect. British Columbia
believes that the judges of the highest court in the land, whose chief
role is as umpire of the federal system, should not be subject to unilateral
appointment by one level of government. An umpire must not only be
neutral he must in all respects appear to be so. Appointments by one
level of government, whichever it may be, compromise that neutrality in
the eyes of the other level of government and in the eyes of the public.

The third, the Victoria Charter appointment system had the merit
of allowing both levels of government to play a role in the appointment
process. The scheme would require consultation between and agreement
by both the Attorney-General of Canada and the Attorney-General of
the appropriate province of residence of the prospective judge prior to
the appointment of the judge. Only the federal Attorney-General could
propose nominees. If the two Attorneys-General could not agree on a
nominee, the federal Attorney-General had the right to opt for a com-
mittee consisting of all the Attorneys-General in Canada or of one
composed of the two Attorneys-General involved and a chairman.
Names could be submitted to either kind of nominating committee only
by the federal Attorney-General and only from among those he had
already submitted to the provincial Attorney-General for approval. The
committee would then make a recommendation to Cabinet which
presumably would accept the recommendation.

British Columbia believes that the Victoria Charter scheme has three
major defects. First, it is a cumbersome, and probably time-consuming,
. Secondly, it raises the rather unseemly spectre of judicial

13

appointments being arrived at through a process of intergovernmental
arbitration. Thirdly, there is a possibility that the provincial role in the
appointment process could be quite limited–or even illusory. For
example, assume that the federal government was strongly inclined to
appoint Black, a British Columbia lawyer, to the Supreme Court.
Assurne also that the Attorney-General of British Columbia disapproved
of this proposed appointment. The federal government could then put
forward the names of some very weak candidates, White and Green.
The Attorney-General of British Columbia would, correctly, disapprove
of them. These names (Black, White and Green)—and no others

would then be submitted to the arbitration committee. The likely result?
Black is appointed-exactly what the federal government wanted in the
first place.

The fourth method of appointment-nomination by the federal
government plus confirmation by a reconstituted Senate-has the advan-
tage of allowing both levels of government to play a genuine role in the
appointment process. It also would probably open the judicial appoint-
ment process to public. scrutiny. Presumably the Senate would hold
hearings before confirming a Supreme Court nominee. This might have
the same beneficial effect that Senate confirmation hearings have in the
United States-namely, the denial of high judicial office to persons of
less than great ability and good reputation.

The only disadvantage of this method is that provincial participation
in lthe appointment process 1S not as direct as under the Victoria Charter
sc eme. If the federal government wanted to appoint a British Columbia
lawyer to the Supreme Court, under the Victoria Charter procedure,
only the two governments would be involved. Under the Senate con-
firmation procedure, British Columbia’s voice would be only one of
many. Presumably British Columbia’s Senators would no doubt take
a leading part in the confirmation hearings and presumably the other
Senators would show some deference to B.C.ls view as to the suitability
of the nominee. But neither of these occurrences is guaranteed.

The fifth method of appointment is the one recommended bv the
federal government in its recent package of constitutional proposals.
This is the combined Victoria Charter-Senate confirmation method which
requires that a nominee go through, cumulatively, the steps in both the
Victoria Charter and Senate confirmation methods discussed above.

Of the six possible appointment methods, this method allows the
greatest provincial participation in the appointment process. In spite
of this advantage the Government of British Columbia believes that it
is overly cumbersome and unnecessary. In addition, the criticisms made
above of the Victoria Charter method standing alone apply with equal
force to a combined Victoria Charter-Senate confirmation procedure.

14

This brings us to the sixth method of appointment which is, in effect,
a slight variation of the federal nomination-Senate confirmation method.
Although British Columbia believes that it is essential that there be
provincial participation in the appointment process, B.C. does not think
that the duplication of provincial participation caused by the combined
Victoria Charter-Senate confirmation method is necessary or desirable.
Provided that it is reformed along the lines suggested by British Colum-
bia (see Paper No. 3), the Senate can provide an effective forum for
regional participation in the appointment process, if there is a simple
provision in the Constitution that the federal government must consult
with that province before putting a name before the Senate. It would
be expected that such consultation will be carried out in good faith by
both governments without the necessity of spelling out in the Constitution
precisely how this consultation should be carried out.

In summary, British Columbia recommends a three-step appointment
method-first, consultation between the federal government and the
Government of the province of the proposed nominee; then nomination
by the federal government; then confirmation by the reformed Senate.
This procedure is not cumbersome; it has the advantage of allowing
participation by both levels of government (with provincial participation
being shaded slightly in favour of the proposed nominee’s province);
and, in our view, it is likely to result in appointments being made in a
non-partisan atmosphere conducive to the selection of judges of high
ability and reputation.

Size of the Court

Turning to the overall size of the Court, from 1875 to 1978 the
Supreme Court of Canada has consisted, at various times, of six, seven
and nine judges. In our modern age a six or seven-person bench would
be too small to deal with the great range of complex legal problems that
arises every year. A nine-person court can probably manage the work-
load and is probably an effective size for collegial consultation. But,
unfortunately, the constitutional conventions that have evolved in rela-
tion to Canada’s nine-person court have precluded meaningful repre-
sentation from some of the regions of Canada. Because Quebec (by
direct constitutional provision) and Ontario in practice always have
three members on the court, the other three regions have generally been
underrepresented. For example, British Columbia has not had a judge
on the court since 1962 and cannot expect one on the basis of past prac-
tice until at least 1982.

British Columbia believes that there is no real conflict between
those who advocate that the members of the Court should be appointed
solely on the basis of merit, without regard to geographic factors, and

15

those who favour a Court composition based, at least in part, on geo-
graphic considerations. Persons of substantial merit and judicial
promise live in all regions of the country–certainly the quality of the
Court would not be compromised by minimal geographic requirements.
On the contrary, a constitutional provision ensuring representation on
the Court from all regions of the country would probably contribute to
the better development of the legal communities in the regions because
each community would have as its leader a member of the highest court
in the land. Accordingly, British Columbia recommends that the
Supreme Court be composed of eleven members consisting of at least
one person from each of Canada’s five regions.

Other possible sizes that have been suggested for the Supreme Court
are ten, eleven, thirteen, fourteen, and fifteen. British Columbia recog- .
nizes that a ten-person court (indeed any even-numbered court) can
present serious problems, particularly in constitutional cases. If all
ten judges sit, the possibility of a 5-5 split is obvious. If less than ten
sit, a party losing a close case, say by 5-4 or 4-3, may feel that it lost,
not on the merits, but because of the luck of the draw in assigning judges
to that case. This is certainly not conducive to the development of an
enhanced respect for the Court and its decisions.

British Columbia believes that thirteen, fourteen. and fifteen-member
courts would be cumbersome in size and unlikely to contribute to
effective hearings at the oral argument stage or effective collegial consul-
tation and opinion-writing at the decision-making stage.

In British Columbia’s view, a court of eleven members is sufficiently
large to accommodate the geographic factors discussed above and to
handle a large and difficult caseload in an efficient fashion. On the
other hand it is not so large as to make the argument, consultation and
opinion-writing stages of a case overly cumbersome and inefficient.

16

IV. The Jurisdiction of the Supreme Court of Canada

The jurisdiction of the present Supreme Court of Canada is very
broad. The Court exercisesappeliate jurisdiction in all types of cases–
constitutional and nonconstitutional. In addition the jurisdiction of the
court is not limited to cases. involving the interpretation of federal
statutes; the.court also has the final word on the meaning of provincial
statutes. This broad jurisdiction has been criticized on two counts.

The criticisms, which emanate primarily from lawyers and academics
in Quebec, are:

(1) The court should be a specialized Constitutional Court with
a jurisdiction limited to cases involving constitutional issues;
(2) The court’s appellate jurisdiction should be limited to cases
involving the interpretation of federal statutes. Provincial
superior courts should exercise final appellate jurisdiction
in cases involving the interpretation of provincial statutes.

Each of these proposals will be considered in turn.

A Constitutional Court?

The starting point for most French Canadian academic analysis of
the Supreme Court is an acknowledgment that judicial control or
umpiring is basic to the effective working of federalism in Canada. Yet,
French Canadianoacademics view the Supreme Court of Canada with
distrust- they believe its structure and jurisdiction is foreign to the basic
theory of federalism as well as to the fundamental interests of French
Canada.

Most French Canadian academics-Jacques Yvan Morin devoted
a good deal of attention to this problem in his professorial days and
his views are representative of the French Canadian academic commu-
nity–regard a European-style Constitutional Court as being the best
solution to the problems of the present Supreme Court.

The basic elements of most proposals for a constitutional court are
as follows:

(1) European Constitutional Courts have worked well; so has
the American Supreme Court which is a de facto Constitu-
tional Court.

(2) Specialization in other areas of the law is regarded as
desirable and seems to result in better judicial decisions.
A similar improvement in constitutional decisions could be
anticipated if Canada had a specialist Constitutional Court.

(3) The Constitutional Court could either be a chamber within
the present Supreme Court

17
mon Law and Civil Law) or it could have independent
status.

(4) The existence, composition, appointment procedures and
jurisdiction of the Constitutional Court should be provided
for in the Constitution.

(5) The basic jurisdiction of the Constitutional Court would
be over-all constitutional matters. When a constitutional
issue arose it would automatically be referred to the Consti-
tutional Court–irrespective of the court level or stage of
litigation at which the issue arose.

(6) Appointments to the Constitutional Court would come from
a much broader spectrum than the present Supreme Court.
Members of the bench, bar, civil service and academic
community (including, presumably, some non-lawyers)
would be prime candidates for appointment.

(7) Since, it is argued, Canada is a bi-national country and
since our important national institutions should reflect this
fact the Constitutional Court should have an equal number
of French and English judges.

Advocates of a Constitutional Court structured along these lines
assume that the judges of the Court, before appointment, would be
experts in constitutional law. This initial expertise coupled with a case-
load consisting of only constitutional cases would result, they believe,
in constitutional decision-making of a high quality–certainly better,
it is argued, than the decisions being rendered by the current non-
specialist Court.

In spite of these suggested advantages, British Columbia believes
that there should not be a separate Constitutional Court in the Canadian
judicial system. In our view there are two serious disadvantages of such
a body.

First, it is often impossible to separate constitutional and non-
constitutional issues. Neither can be examined in the abstract. They
can be considered only in the context of a concrete fact situation-and
many fact situations present elements of both types of issue. We agree
with the assessment of former Justice Minister John Turner:

“We believe also the court should not be compartmental-
ized. The jurisdiction of the court should be integral or
entire and it should not be a specialized body merely
hearing constitutional issues. In the adversary process
a case of law is a case between two individual litigants
and it may involve questions of the civil law and questions

18

of the federal statutes and items of a constitutional nature
all wrapped up together in the same selection of facts and
involving the whole panorama of the law.”
Secondly, even if legal issues could be separated into constitutional
and nonconstitutional issues, British Columbia believes that it would not
be desirable to do so–for two reasons:

(a) It could result in a great many more public issues of the
day being decided by the Court on constitutional grounds.
If, at an early stage of a case, constitutional issues are
separated from the rest of the case and referred to the
Supreme Court the Court is precluded from deciding the
case on nonconstitutional grounds. And, once the Court
is obliged to decide a case on a constitutional basis, this
may preclude governments effectively dealing with the
matter through a process of intergovernmental negotiation
and compromise. Take, for example, a difficult case
involving potential federal jurisdiction on the basis of its
broadcasting power and potential provincial jurisdiction
under its education power. Perhaps the issue is so crucial
that neither level of government can afford to lose the case
in its entirety. The present Supreme Court might be able
to decide the specific case on a narrow statutory interpreta-
tion, administrative law or common law point leaving the
broader head-on broadcasting-education conflict for resolu-
tion at a later date. This in turn would give the respective
governments more time to work out a political solution
which, by definition, would be a compromise in which
neither government would completely lose. This is a good
process.

(b)There is a value in Supreme Court judges seeing the “whole
panorama” of the law. The experience of decision-making
in private law cases will make the judges better constitutional
decision-makers.

Jurisdiction Limited to Federal Statutes Only?

The present Supreme Court of Canada now exercises appellate
jurisdiction in cases involving the interpretation of federal and provincial
statutes. There are some lawyers and academics, again primarily in Quebec, who beleive that final appellate jurisdiction in cases involving provincial statutes should rest with provincial superior courts. They assert that a provincial superior court with local judges is better able to
interpret provincial statutes because of their understanding of the needs

19

of, and experience in, the provincial community. In addition th
believe that there is no good reason for a national body to interpr
provincial laws. Provincial governments were created, and provinci
laws are enacted, to provide localized solutions to localized problem
Dissimilar legislative responses to local problems are the raison d’etre
of provincial governments. These dissimilar legislative responses should be encouraged-not discouraged or diluted by allowing a national judicial body to pass judgment on similar provincial legislation, with t
likehood that those provincial laws will be interpreted and enforced a uniform fashion.

These arguments have an added dimension in Quebec with its unique
system of private law. Many Quebec lawyers and academics believe
that Quebec’s civil law should be interpreted by judges trained in the
civil system rather than by the Supreme Court of Canada with only
minority of civilian judges.

As far as the interpretation of proxincial statutes in the common law
provinces is concerned. British Coiumbia does not believe that the ca
for nine separate appeal courts exercising final appellate authority
particularly strong. Most of the provinces do not want or need nii
different “common laws” in the country- which is what we might g
if the Supreme Court of Canada could not play its current superviso
role- Whereas the features of the civil law in Quebec requi:
preservation and should not be diluted by inapplicable common law
principles, a basic uniformity of interpretation of similar provinci
legislation in the common law provinces is desirable. The existence
one national appeal court insterpreting such legislation contributes sig
nificantly to the realization of that goal.

20

Summary of Proposals

The Government of British Columbia recommends:

(1) The existence, composition and jurisdiction of the Supreme
Court of Canada should be provided for in the Constitution
so that these attributes of the Court will not be subject to
unilateral change by either level of government.

(2) There should be a three-stage procedure for appointments
to the Supreme Court of Canada:

(a) Consultation between the federal government and the
government of the province to decide upon the pro-
posed nominee;

(b) Nomination by the Federal Government;

(c) Confirmation by a reconstituted Senate.

(3) The Supreme Court of Canada should be composed of
eleven members. Membership should be based primarily
on merit but should be drawn from all the five regions of
Canada.

(4) The Supreme Court of Canada should continue to exercise
final appellate jurisdiction in constitutional and nonconsti-
tutional cases.

(5) The Supreme Court of Canada should continue to exercise
final appellate jurisdiction in relation to both federal statutes
and provincial statutes.